Legal Analysis Fundamentals
Firstly, what is legal analysis?
Legal analysis is down to the interpretation of the law and its application. Essentially, legal analysis involves the interpretation of relevant statutes or case law in order to apply the law to the facts. Once you analyze the law against the relevant facts, a conclusion must be reached. This is fundamental to the legal profession and very rarely will you find a piece of legal writing that does not involve some form of legal analysis.
Now, let’s analyze legal analysis.
Legal analysis involves breaking down (dissecting) legal texts into their fundamental components in order to identify relevant facts and arguments. Crucially, legal analysis requires you to develop a sophisticated understanding of how the law functions and the fundamental principles contained within it. From that foundation, you can apply the law to a set of facts and, accordingly , draw a conclusion.
Legal analysis is at its core a method by which you can understand the law, identify rules and understand how to apply them to a set of facts. Legal analysis is not an opinion and certainly not a rule book. Legal analysis is the basis of legal writing and, by extension, clear and unambiguous language.
So, what is legal analysis not?
Essentially, legal analysis is not learning the law by rote. Many students believe that regurgitating the law is legal analysis. This is highly inaccurate and will often be of little help in an assessment environment. The law, especially if you are studying law, has a habit of being constantly tested in unpredictable manners. For example, in a problem-style examination question, understanding how to apply the law is key. Legal analysis is the precursor to legal writing and as such provides a tool box of techniques and skills upon which you can draw.
How To Structure Your Legal Analysis
A major component of legal analysis is the organization of your legal issue and its solution. This outline may be very explicit in jurisdictions where required judicial rulings must be reported. Even where such reporting is not required, the ability to organize one’s legal analysis is crucial in almost all legal practice. It is not sufficient merely to state the law as it applies to the specific issue. Insightful legal analysis requires a professional (not just a rule- or precedent-like) rhetorical statement of the law in issue.
The most common structuring of a legal analysis is the IRAC structure, although most lawyers use it as a mnemonic tool rather than as a strict rule prior to writing. Under IRAC, the format of your legal analysis is to first state the issue in clear language, then state the law under which you will be analyzing the issue, stating your conclusion, and the application of the facts to the law.
There are many others, of which the following are just a few examples:
Not only does initial structuring of the issue enable you to better identify the conclusion that the law will yield, but it leads naturally to an easily understandable organization of your writing.
One possible disciplined example follows:
This organization leads to clarity, as you must first narrow down the issue under discussion. It also allows for conciseness in your writing, for it keeps your analysis on point. You must state the essential elements of the required statute, order, or judicial precedent, if any exist. You must ultimately bring out the relevant facts and the opinion of the court that best clarifies the law with reference to your facts.
The resulting organization of your ideas brings clarity to the reader, and ultimately to the trier of fact.
How To Identify And Analyze The Legal Issues
Identifying a legal issue is the first step in any legal analysis. A legal issue is a legal question that arose from a set of facts or circumstances. To find the legal issue, you need to look for a conflict or a question. What’s the conflict or question – or legal issue? Not only do you need to find the conflict or question, you need to answer the conflict or question. In other words, you pose the legal issues as questions, and then write out an answer to each question. The answer comes from the law. Give your answer in clear and concise terms.
Legal issues are often found at the end of a sentence someone poses to you. For example, consider the following sentence: "My neighbor’s tree is damaging my property. What can I do?" The legal issue in the above sentence is "What can I do?"
What if there’s no question sentence posed to you? You’ll run into this situation where there’s no explicit question or conflict: you might read a statute or find a conflict in a case where you need to decipher a legal issue. Lets say you’re looking at the Uniform Commercial Code in Article 2 on the sale of goods. It may seem dry and boring – after all, if your a litigator, sales contracts might seem like "boring topic." But the UCC has a lot of conflicts within it that could make our trade disputes messy. Its a topic worth knowing something about.
Agreed, but I’m not advocating that you memorize each provision of the UCC, or even Article 2 of the UCC. Your job is to analyze disputes that arise from the UCC. How do you do this? Again, by issue spotting. You’re trying to find the conflicts within the UCC.
Consider a situation where you have parties to a lawsuit who have a dispute over the definition of "battle of the forms." A battle of the forms is simply the situation where one party sends over its contract with terms and conditions, and the other party responds with its own form. This creates a conflict over terms of the contract.
In the situation above, we know there’s a conflict because both parties are asserting that their contract’s terms should apply – one party’s formation of the contract is being rejected by the second party. And usually, these parties will cite to a different provision of the UCC – for example, one party may cite to Section 2-207(1) and the other party might cite Section 2-207(2).
Again, we’re issue spotting. We’ve located the conflict, and now we need to look at the answer under the law.
Remember, the answer under the law comes from the law. Research that law and write a short analysis of how the UCC should treat the parties in this dispute over the battle of the forms and you’ll be ready as sock to litigate the dispute between them.
What are some examples of legal issues? Here is a list of some examples, but keep in mind that every situation poses slightly different facts from every other situation:
How To Research And Apply The Legal Rules
You’ve carefully crafted your issue. Now examine the judge’s instructions, if they are available. Your legal research has culminated in a statement of the applicable law or legal rules to achieve a reasoned conclusion for deciding an issue. If you are analyzing more than one rule, note how they overlap or differ. Don’t blanket copy & paste large segments from other sources without spinning them in your own words. Naturally, cite the resource from which you drew your information and research in a manner that appeals to the legal community, such as The Bluebook, 20th Edition: A Uniform System of Citation (page number) (Columbia Law Review Ass’n ed. 2015) (e.g., Colum. L. Rev. (20th ed.) at 321). Therefore, you may write: "In assessing negligence, the trier of fact looks to certain elements which must be established by a preponderance of the evidence: existence of a legally enforceable duty of care, breach of this duty, causation of harm to the complaining party, and damages." (Colum. L. Rev. (20th ed.) at 321) (internal quotations marks omitted); see also Ingersoll v. Justice Court, 9 Cal. 3d 646, 651 (Cal. 1973) ("The negligence of a physician is a failure to use that reasonable degree of skill, knowledge and diligence ordinarily possessed and exercised by a reasonably careful and skillful practitioner in the field of medicine." (emphasis added)). In this example, you note how the rules are similar, but not quite the same. Generally, there are variations among the law of different jurisdictions, such as with California vs. Montana. The citation made here suggests that your primary source is a law review article published in Columbia, thus an indication to your audience that you are citing a secondary source. You may use the term "Id." or "Id. at FN 20" to refer to a source cited in the immediately prior footnote. If you were to refer to another footnote in the same citation you would write either "Id. FN 20" (the same footnote) or "Id. FN 19" (a different footnote). Id. is short for id est, or that is in Latin.
How To Write Persuasive Legal Arguments
When you prove the issue — that is, when you’ve got everything you need to support a claim or defense and you can finally start to write good content — you’re ready to craft persuasive legal arguments. It’s time to use those facts and legal principles that you just organized in your analysis to make your case. There are three big tips to keep in mind when doing this: You should use these tips as a guide throughout your writing, but these three are the real keys to mastering persuasive legal writing. Your goal is to define each issue, present the relevant standards of law and offer evidence to support your conclusions. Think about how you summarize cases and statutes (or statutes of limitations) when you provide a verdict: What happened? Who were the facts, and what laws applied, and how did you apply the law to the facts? For example, it’s one thing to say that "Tortious interference exists when one person has intentionally and improperly interfered with a contract between a plaintiff and a third party." It’s another to add context by including how the circumstances differed from those of other cases. This is especially true for sophisticated content intended for an audience you consider highly educated. Your readers have seen every generalization that you could think of about some part of the legal profession , and they’ve heard those same generalizations far too many times. They can even be defensive about them — so don’t tell them what they already know. When you’re writing about more detailed, advanced issues, assume your audience is an expert. Lead with your strongest arguments, and support them with the facts. A good argument relies on clean language, proper grammar and a logical structure. Assume that your audience is intelligent and experienced enough to argue your counterpoints, and refute them respectfully. Get into the mind of your reader as you edit, and ask these questions: Write all your content first, even if you’re going to stop editing halfway through every version of a draft. Then, take a break and walk away from your work for a while. When you come back to it later, you can reread it with fresh eyes and a fresh perspective to critique your own arguments.
How To Conclude Your Analysis
The final paragraph of a legal analysis is an opportunity to leave a lasting impression with your reader. Your conclusion should tie together your analysis succinctly. Depending on the amount of material you have previously covered this could be done in two sentences or two paragraphs. Readers should be able to clearly understand your main points and your conclusions from your conclusion section. A good conclusion should tie your analysis together, but it does not provide an opportunity to introduce new concepts or make new arguments. In addition to tying your work together in your conclusion you should reiterate why your analysis is important. You are essentially proving to your reader that your legal analysis is worthwhile one.
Common Mistakes And How To Avoid Them
One of the most significant pitfalls in legal analysis is overgeneralizing. Lawyers are trained to identify the general rule and the exceptions to it. But when it comes down to a particular client’s problem, overgeneralizing can cause prescriptive prescriptions. Answering a particular client’s question requires weighing not just the general rules, but also the applicability of exceptions or alternative rules. Overgeneralizing is generally easy to spot. Most lawyers are already aware of common subclasses within a category, such as different groups of child EMR submitters. But on occasion, a more obscure category may need to be differentiated, such as distinguishing between animal sources of EMR. In either case, overgeneralizing can be avoided with due diligence to characterize the property for the specific circumstances.
A related danger exists when generalizing from small samples sizes , such as doing a survey of "wellness" programs in a few selected companies when all employers are considering wellness issues. Only consider the sample used and avoid premature conclusions from merely drawing these type of broad categories. While the data analyzed in drafting these FAQs probably constitute a larger sample than other legal research (what company hasn’t been involved in wellness questions of late?), the rule on using such data to reach a conclusion is basically an inverse of the rule on overgeneralizing: properly institute a statistical protocol first and draw legal conclusions later.
Dean Lorenzo Lonnie Brown’s chapter on the topic is useful for understanding and avoiding these pitfalls and many others associated with legal writing.